Citation Nr: 1756878 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-26 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction now rests with the RO in Indianapolis, Indiana. On his September 2011 Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing in connection with the present appeal, which was initially scheduled in July 2015. At the Veteran's request, the hearing was rescheduled to July 2016. The Veteran requested that hearing be rescheduled due to a death in the family of his representative. In November 2017 the Veteran withdrew his request for a hearing. This matter was remanded by the Board in September 2016 for further development, which has been substantial completed. FINDING OF FACT Since the grant of service connection, the Veteran's left ankle disability has manifested with pain, significantly limited dorsiflexion, and plantar flexion limited to no less than 35 degrees, including on repetition functional limitations; without evidence of ankylosis. CONCLUSION OF LAW The criteria for an initial disability rating of 20 percent, and no higher, for a left ankle disability are met. 38 U.S.C. §§ 1131, 5103, 5107 (2017); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code (DC) 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks a higher evaluation for left ankle degenerative joint disease (DJD). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155 (2016); 38 C.F.R. § 4.1 (2017). In the present case, service connection for left ankle DJD was granted in June 2009, establishing a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5271 (2017) effective November 19, 2008 (the date which the Veteran submitted his claim). The Veteran filed a notice of disagreement with this rating decision in December 2009. Thus, the relevant period of appeal is November 19, 2008 to present. Under DC 5271, a rating of 10 percent is warranted for moderate limited motion of the ankle, and a rating of 20 percent is warranted for marked limited motion of the ankle. A rating above 20 percent is warranted, under DC 5270, only if ankylosis is present. See 38 C.F.R. § 4.71a, DC 5270. Normal ranges of motion of the ankle are as follows: dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees, these measurements represent significant limitation of motion. 38 C.F.R. § 4.71a, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must also consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). In 2009 VA sought treatment records from Dr. K, a private physician, but they responded that they did not have the records requested. The Veteran was afforded a VA examination for his left ankle in March 2009. The Veteran indicated that he had no specific subjective complaints. He did not use any assistive devices for his left ankle and his gait was normal. Range of motion testing showed dorsiflexion was 0 to 5 degrees and plantar flexion was 0 to 45 degrees. The examiner indicated that this was the range of motion produced by the anatomical arrangement of the ankle joint. After repetitive use three times, dorsiflexion remained the same at 0 to 5 degrees and plantar flexion was 0 to 40 degrees. This was completed without pain; X-rays showed DJD. Ankylosis was not present. The Veteran visited a VA podiatry center in April 2010. The Veteran reported pain and swelling with repetitive work and physical activities (i.e. walking, standing for prolonged periods of time). Upon examination, the clinician noted foot abnormalities with reduced range of motion and pain with prolonged standing, crouching, and walking if involving bending of the foot and ankle. Actual range of motion measurements were not provided. The Veteran was provided another VA examination in April 2012. The Veteran noted that he had not been receiving care for his ankle. Range of motion testing showed no dorsiflexion was possible; plantar flexion was 0 to 50 degrees. After three repetitions, dorsiflexion was 0 to 5 degrees and plantar flexion was reduced to 0 to 35 degrees. Ankylosis was not present. This decrease was due to pain and not to fatigue, weakness, lack of endurance, or any other identifiable factor. There was no demonstrable joint instability. Gait was normal. The examiner indicated the Veteran was able to perform all of his occupational responsibilities without limitation from his ankle condition. Flare-ups occurred mostly with damp weather. The Veteran submitted a private treatment record dated in November 2014 that showed he attended therapy for his foot/ankle. This treatment was noted to be two to three times per week for four to six weeks. The Veteran was afforded another VA examination in February 2015. The Veteran denied flare-ups, but did report functional loss such as not being able to stand for long periods of time and the ankle "cracking" when he walked. Dorsiflexion was 0 to 5 degrees and plantar flexion was 0 to 40 degrees. No pain was noted on the examination and there was no change in range of motion after repetition. Ankylosis was not present. The examiner indicated that the limited motion contributed to functional loss such as difficulty bending, crouching, and squatting. Although the Veteran was not examined immediately after repetitive use over time, the examiner noted that the examination supports the Veteran's statements describing functional loss with repetitive use over time. Pain significantly limited his functional ability with repeated use over a period of time without causing additional limitation of motion. The examiner was unable to say whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-up. In a March 2015 addendum opinion, the examiner noted that the Veteran's left Achilles tendonitis (noted on the February 2015 examination) was a progression of the service-connected left ankle condition and that the Veteran's reduced range of motion was due to the Veteran's disability. In September 2015 the Veteran submitted records from the Philadelphia VA Medical Center that indicated he had left Achilles tendonitis, diagnosed in December 2014. In October 2015 the Veteran submitted an Ankle Conditions DBQ completed by a private physician. The Veteran indicated he experienced flare-ups that resulted in difficulty walking. Initial ranges of motion measurements were not provided. Pain was noted on active, passive, and/or repetitive use testing that contributed to functional loss or additional limitation of range of motion. There was pain on weight-bearing that resulted in functional loss or additional limitation to range of motion. Ranges of motion measurements were not provided. The Veteran was afforded another VA examination in November 2015. He experienced pain and stiffness on the left ankle but did not receive any current treatment. The Veteran denied flare-ups and functional loss or impairment. His initial ranges of motion measurements were all normal (dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees). Pain was noted on plantar flexion, but it did not result in or cause functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Ankylosis was not present. VA treatment records from the Philadelphia VAMC have been reviewed. The Veteran reported intermittent chronic pain with no swelling, redness, increased warmth, or bruising. He did not report any falls. He was seen at podiatry and prosthetics for custom foot orthotics. Aside from the VA examinations, the severity of the Veteran's limited motion was never described and no other ranges of motion measurements were provided. Based on the evidence, and resolving reasonable doubt in the Veteran's favor, the Veteran is entitled to a 20 percent rating, and no more, for his left ankle disability for the entire appeal period. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. This rating is assigned because the evidence shows the Veteran had limited motion in his left ankle, particularly dorsiflexion, at nearly all of the VA examinations. The Veteran has not achieved dorsiflexion greater than 5 degrees, except at the most recent examination in November 2015. Also, he has competently reported that his left ankle is painful and results in functional loss with repeated use over time manifested by an inability to stand or walk for prolonged periods, and difficulty with other movements such as squatting and crouching. The Board is mindful of the fact that at the October 2015 VA examination, the Veteran denied flare-ups and functional loss; however, he has reported these factors at other times during the appeal. Moreover, the clinicians have noted that the ankle disability results in additional functional loss, particularly with repetitive use over time. Specifically, repetitive use tests at the March 2009 showed plantar flexion was reduced by 5 degrees. The April 2010 podiatry assessment shows the Veteran reported pain and swelling with repetitive work and physical activities (i.e. walking, standing for prolonged periods of time). The VA clinician indicated that the clinician noted foot abnormalities with reduced range of motion and pain with prolonged standing, crouching, and walking if involving bending of the foot and ankle. Also, at the April 2012 plantar flexion was reduced to 35 degrees after three repetitions due to pain. Further, at the February 2015 examination, the Veteran reported functional loss such as not being able to stand for long periods of time and difficulty bending, crouching, and squatting. The VA examiner noted that the examination supports the Veteran's statements describing additional functional loss with repetitive use over time due to pain. Overall, the Board finds that the Veteran's limited dorsiflexion motion, subjective complaints of pain, and the demonstrated functional impairment warrant a 20 percent rating for the appeal period. See 38 C.F.R. § 4.71a, DC 5271. At no time during the periods under review have the criteria for a disability evaluation in excess of 20 percent for a left ankle disability been met. See Fenderson, 12 Vet. App. at 126. A 20 percent disability evaluation is the maximum rating possible under DC 5271, the diagnostic code under which the Veteran is currently rated. Further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There are also no other diagnostic codes which would provide higher or separate ratings for the Veteran's left ankle disability. He is not entitled to higher evaluations of 30 and 40 percent under DC 5270, for ankylosis as there is no evidence of ankylosis. See 38 C.F.R. § 4.71a, DC 5270. There also is no evidence of a malunion to the os calcis or astralgus, so as to warrant a higher or separate evaluation under 38 C.F.R. § 4.71a, DCs 5273 or 5274, respectively. Additionally, DC 5284 (for "other foot injuries") is not applicable because this diagnostic code pertains to the feet while the service-connected disability is of the ankle. There are no additional expressly or reasonably raised issues presented on the record. ORDER An initial disability rating of 20 percent, but no higher, for a left ankle disability is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs